AS TO THE ADMISSIBILITY OF
Application no. 68329/01
by Vlado MICKOVSKI
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (Third Section), sitting on 10 November 2005 as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr J. Hedigan,
Mr L. Caflisch,
Mrs M. Tsatsa-Nikolovska,
Mr V. Zagrebelsky,
Mrs A. Gyulumyan,
Ms I. Ziemele, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 29 January 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Vlado Mickovski, is a national of the former Yugoslav Republic of Macedonia, who was born in 1964 and lives in Vraneštica (Kičevo).
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant has been a member of the Social-Democrat Political Party (the SDSM) since 1996. In the 1996 local elections he was elected member of the Vraneštica Local Council.
On 29 December 1997 the applicant was appointed Deputy Solicitor General by the Government for a term of four years and he resigned from his post of councillor.
On 23 May 2000 the applicant was dismissed. No reasons were given by the Government in this respect.
On 24 July 2000 the applicant stated that he lodged a complaint with the Constitutional Court by mail. He alleged that his dismissal was unlawful and discriminatory and that the sole reason for his dismissal was his membership in the SDSM.
The applicant stated that the above mentioned mail came back with a notice stating that it had not been collected. The applicant re-sent the same letter to the Constitutional Court on 23 August 2000. The clerk of the Constitutional Court responsible for collecting from the post office mail addressed to that Court had been on holiday and nobody collected the mail.
On 27 September 2000 the Constitutional Court refused to examine the applicant’s complaint. It stated, inter alia, that:
“Under rule 51 of the Rules of Constitutional Court ... each citizen who considers himself/herself to be a victim of a violation of the rights and freedoms set out in Article 110 § 3 of the Constitution ... may lodge a complaint within two months’ time-limit from the day he was served with the final decision or act ...
Regard being had to the fact that the [impugned] decision ... was adopted on 23 May 2000 and promulgated [in the Official Gazette] on 9 June 2000, and [that the applicant] lodged his complaint ... on 11 September 2000 (the complaint was postmarked 23 August 2000) it means [the complaint was lodged] out of the two-month time limit ...”
On 18 October 2000 the applicant submitted to the Constitutional Court that he had sent his first letter on 24 July 2000, and that it had come back to him with a notice stating that the mail had not been collected. He enclosed the acknowledgement of receipt.
On 24 November 2000 the Constitutional Court replied that there had been no evidence in the case-file which would corroborate the applicant’s allegations that he had lodged his complaint on 24 July 2000. In particular, the court could not establish whether or not the enclosed acknowledgement of receipt related to the said mail.
On 28 November 2000 the applicant forwarded the note received from the Post to the Constitutional Court. It stated that his mail of 24 July 2000 addressed to the Constitutional Court had been returned to him on 21 August 2000 since it had not been collected by the receiver.
On 10 January 2001 the applicant was informed that the Constitutional Court had decided not to re-examine his complaint, because of the reasons set out in its decision of 27 September 2000.
On 1 July 2000 the applicant complained to the Supreme Court that his dismissal had been unlawful.
On 15 October 2000 the Supreme Court refused to examine the applicant’s complaint considering that it was not amenable to judicial review within the meaning of Section 30 § 1 of the Administrative Disputes Act. It stated, inter alia, that:
“From ... the Acts [on the Government, and on the Solicitor General] it transpires that the Government of the Republic of Macedonia, in this particular case, did not take a decision concerning an administrative issue, but that, within the boundaries of its competence as defined by Section 46 § 5 of the Government Act, ... [it] dismissed [one of its agents] from his office. The decision whereby [a person] is appointed or dismissed from his office does not represent an administrative act within the meaning of Section 6 of the Administrative Disputes Act because it does not contain a very important element [and] that is, it does not regulate an administrative issue. ...”
B. Relevant domestic law and practice
Article 110 § 3 sets out the Constitutional Court’s competence to deal with complaints from individuals concerning violation of their rights and freedoms to communication, conscience, opinion and public expression, political association and activities, as well as prohibition of discrimination on the grounds of gender, race, religion or national, political or social affiliation.
2. The Solicitor General Act
Article 2 provides:
“The Solicitor General’s office is established as an office of the Government of the Republic of Macedonia, which undertakes the legally defined measures and executed the legal instruments for the purposes of legal protection of the property rights and interests of the Republic of Macedonia and performs other tasks as set forth by law.”
Section 4 provides, inter alia, that the said duties shall be carried out by the Solicitor General and his deputies.
“The Solicitor General represents the Republic of Macedonia and its institutions before the courts, other bodies and legal entities and before foreign courts and bodies in property disputes with foreign natural or legal persons.”
Section 6 provides, inter alia, that the Solicitor General has to answer to the Government for his work. In his absence his duties shall be performed by one of his deputies. The Solicitor General and his deputies are required to observe and maintain the proprieties and good reputation befitting persons performing their duties.
Section 7 provides, inter alia, that his deputies may undertake all the measures before the courts or other bodies that are within the powers of the Solicitor General, and that they have to answer for their work to the Solicitor General and to the Government.
Sections 8, 9 and 10 provide that the State institutions shall provide the necessary information to the Solicitor General’s office concerning the State interest and property and that they shall co-operate in this respect.
Section 12 provides that if the Solicitor General considers that there is no need to institute proceedings, or it is better to reach a friendly settlement or to withdraw an application he shall ask the opinion of the state institution that he represents. In a case of disagreement, the Solicitor General may ask the Government to take a decision in this respect.
Section 13 provides that when the courts during the judicial proceedings observe that it is necessary to undertake measures for the protection of state property or interest they shall inform the Solicitor General.
Section 16 provides that the Government appoints and dismisses the Solicitor General and his deputies.
Section 17 provides, inter alia, that the Government’s decisions on the appointment of the Solicitor General and his deputies shall be promulgated in the Official Gazette.
Section 18 provides, inter alia, that a person who has Macedonian citizenship, who fulfils general conditions for employment in a state institution, is a Law School graduate and enjoys the appropriate reputation may perform the functions of Solicitor General, or Deputy Solicitor General.
Section 19 provides, inter alia, that the Solicitor General and his deputies shall be appointed for a period of four years. They may be re-appointed.
The Act contains no provisions regarding conditions of dismissal.
The applicant complained under Article 6 § 1 of the Convention that he had been unlawfully dismissed and denied access to court. He further alleged under Article 14 that he had been discriminated against in this respect because he was a member of a political party, the SDSM.
The applicant complained that he was denied access to court to contest the lawfulness of his dismissal and discriminated against in that respect due to his membership of a political party.
Article 6 § 1 of the Convention provides as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ...by an independent and impartial tribunal established by law.”
Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
A. The parties’ submissions
1. The Government
The Government submitted that the applicant had held a public state office, which was a service of the Government and Republic of Macedonia, undertaking measures to protect the property and other interests of the State. The law did not define criteria for the appointment or discharge of the Solicitor General and his or her deputies and the Government had a discretionary power in that respect in order to select a person in whom they had confidence and which they considered would properly represent the interests of the Government. The Government established after the November 1998 elections had been composed of members of political parties to which the applicant did not belong and judged that the applicant, an active member of an opposition party previously in power, was not a person who could be assumed to be loyal to the Government and whom they could trust.
The Government also pointed out that the law only provided in the case of discharge that such an official should receive one years’ salary after the termination of his performance of his duties. Domestic law made a clear distinction between such posts and other employees in the State administration. Referring to the Court’s case-law (Pellegrin v. France, no. 28541/95, ECHR 1999-VIII), they submitted that the applicant had performed service with a public character and had disposed of state authority in undertaking legal protection of the property and interests of the Republic and that his petition concerning his discharge from office accordingly did not concern any “civil” right or obligation within the meaning of Article 6 § 1 of the Convention. Similarly, the applicant’s complaints under Article 14 had to be regarded as incompatible as there was no substantive right engaged.
The Government argued in the alternative that the application was inadmissible for non-exhaustion of domestic remedies, since the applicant had not complied with the requisite time-limit in submitting his application to the Constitutional Court. His application was received by the court on 11 September 2000 and his claim that he had sent it on an earlier date was completely uncorroborated. Although he was given the opportunity of supporting his claim with evidence, the Constitutional Court found no element from which it could be concluded that there had been a timely request. On the substance of the applicant’s complaints on this point, the Government relied on the established principles that this Court did not deal with allegations that domestic courts had made errors or fact of law nor lay down rules of admissibility of evidence, which were primarily matters for regulation by domestic courts.
2. The applicant
The applicant submitted that the Constitutional Court had not decided on the merits in his case. He denied that his function related to state sovereignty but rather involved expert duties. He had applied for a publicly advertised post in a competitive procedure, with a fixed four year term and with an expert, and not a political, function. The law provided for a mandate of four years which was not subject to condition of the membership of the party which won the elections. He drew a distinction between political positions where the incumbents were required to enjoy the full trust of the Government in power, where access is limited to those politically suitable and who are loyal and confident to which no mandate or general rules of appointment or dismissal apply and other expert positions, such as judges, public prosecutor and his or her deputies, the Solicitor General and his or her deputies, in respect of which the conditions of eligibility and term of service were laid down. The Solicitor General’s office was a separate Government body fulfilling an expert role in representing the State before the courts and in protecting state property. It required a high level of expertise, to which political affiliation was not a valid consideration. In light of this distinction between political and expert posts, the applicant considers that he should only have been discharged for grounds relating to his performance of his functions in the course of a proper procedure and not summarily discharged due to his political beliefs, which contradicted that of the governing political party.
The applicant considered that it was irrelevant to the nature of his post that the Solicitor General and deputies enjoyed the right to one year’s income after termination of his function. He concluded that the functional criterion established in Pellegrin (cited above) could not be applied to his position.
The applicant denied that he had failed to exhaust domestic remedies or erred in submitting his claim in time. H e submitted that he had done all that was necessary to submit his application to the Constitutional Court, as he sent it on 24 July 2000. However, it was returned to him on 23 August 2000 because the court clerk had not picked it up. It was not his fault that meantime the time-limit had expired. He provided the court with a reasonable explanation and disputed that there was any way that he could be expected to prove that the returned letter contained the petition as he alleged. He was thereby denied access to the courts to obtain protection of his rights and to establish that he was subject to discrimination on political grounds contrary to Article 14.
B. The Court’s assessment
The Court would make a preliminary observation. It notes that the applicant substantiated his claim that he lodged his appeal to the Constitutional Court within the requisite time-limit by producing an acknowledgement of receipt from the Post Office which however had to return the applicant’s letter as the Constitutional Court had not made arrangements to pick up its mail during that period. It appears that the Constitutional Court refused to accept the receipt as proof that the applicant had lodged his appeal as he had not proved the contents of the returned letter. The Court considers it strange that a court would not have in place a system for collecting its mail during the summer period. Once an applicant has taken the appropriate steps to lodge a notice or submission with a court, a court should be able properly to ensure the receipt and recording of those documents.
Turning next to the issues in the present case, the Court’s case-law establishes that whether or not disputes raised by servants of the State over their appointments and conditions of service depends on a functional test based on the nature of the official’s duties and responsibilities (Pellegrin cited above, § 64). Noting that there were certain posts in each Contracting State’s public service sector involving responsibilities in the general interest or participation in the exercise of powers conferred by public law and that the holders of such posts thus wielded a portion of the sovereign power of the State which therefore had a legitimate interest in requiring of those servants a special bond of trust and loyalty, the Court held that the only disputes excluded from the scope of Article 6 § 1 were those raised by public servants whose duties typified the activities of the public service insofar as the latter is acting as the depositary of public authority responsible for protecting the general interests of the State or other public authorities (Pellegrin, §§ 65-66).
In the present case, the applicant was appointed to the post of Deputy Solicitor General, which was an office of Government entrusted with the duty of taking legal measures to protect state property and other state interests. His post also involved representing the State and its various institutions in domestic and foreign fora. The Court considers that the applicant may therefore be regarded as performing duties designed to safeguard the general interests of the State or other public authorities (see also, mutatis mutandis, Kajanen v. Finland, no. 36401/97, dec. 19.10.2000 and Pitkevich v. Russia, no. 47936/99, dec. 8.2.2001 concerning judges; and Martinez-Caro v. Spain, no. 42646/98 et al, dec. 7.3.2000, concerning senior diplomatic and embassy officers). Given his function in representing the State and State interests, it is not persuaded that the legal expertise required by his duties rendered his post of a purely technical nature (see Frydlender v. France [GC], no. 30979/96, §§ 34-41, ECHR 2000-VII).
It follows that the dispute concerning the applicant’s discharge from office did not concern his “civil” rights or obligations within the meaning of Article 6 of the Convention and that this provision is, accordingly, not applicable
As Article 14 has no independent existence but takes effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions, his complaint does not fall within the scope of this provision either.
It follows that the application must be rejected as incompatible ratione materiae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 and 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent Berger Boštjan
MICKOVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA DECISION
MICKOVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA DECISION